Partly allowed

Pushpa & Ors. v. Gulshan & Ors.

Punjab & Haryana HC25 Jan 2013CR/4694/2012

Case brief

AI extract

What is this about?

Holham revision challenged the setting aside of an ex parte award against a contractor to retake a case on merits. The Court held the withdrawing of ex parte status without testing bona fides was unjustified, setting fresh terms.

What did the court decide?

A direction to the Commissioner to confirm the order if the first respondent deposits 50% of the awarded amount within 15 days, allowing the second respondent rebuttal evidence only; otherwise, confir

Pushpa & Ors. Vs Gulshan & Ors. — Service and Employment | Punjab & Haryana HC (2013)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.4694 of 2012 (O&M) Date of decision:25.01.2013

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Smt. Pushpa and others

....Petitioners

versus

Gulshan and others

....Respondents

CORAM: HON’BLE MR. JUSTICE K. KANNAN

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Present: Mr. Surinder Singh Virk, Advocate, for the petitioners.

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Mr. Dhiraj Chawla, Advocate, for respondent No.1.

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Mr. Shailender Sharma, Advocate, for respondent No.2.

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K.Kannan, J. (Oral)

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The revision is against the order passed by the Workmen Compensation Commissioner setting aside the award passed against the first respondent ex parte and rendering an adjudication on merits on a contest entered by the second respondent. The award, as it was originally passed, determined compensation of ` 5,16,904/- as payable by the second respondent with liberty of recovery against the first respondent, who was the contractor, who had employed the deceased on building site. It is a case where the first respondent before the Commissioner was admittedly served in the proceedings and he had appeared in person on three occasions before he was set

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Civil Revision No.4694 of 2012 (O&M) - 2 -

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ex parte on his absence and when he did not file reply on 18.08.2010. It appears that the ex parte order was passed on 17.09.2010 when both the respondents did not appear, but later on an application filed by the 2^nd respondent, who was the owner of the building, the order was set aside and an adjudication was made after evidence.

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The application had been filed by the first respondent pleading ignorance and stating that he did not know that he should file reply and contest the case. Naive, as it might seen, the Court accommodated the plea and observed that the respondent did not have an opportunity to lead evidence and set aside the award and allowed for a trial to take place.

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The learned counsel for the petitioners contends that the first respondent had simply no justification for staying away from Court and an opportunity given to the party to reopen the case causes enormous hardship. I accede to the plea and I find that the Commissioner was not justified in setting aside the order passed ex parte against the first respondent although adjudication had been made on merits with a contest having been entered by the second respondent. The determination is on a formula prescribed under the Act itself and there could not have been an unconditional order of setting aside the award without testing the bona fides of the first respondent and to allowed for a contest only on some terms. In my

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Civil Revision No.4694 of 2012 (O&M) - 3 -

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view, the appropriate term would be at least a direction to pay 50% of the amount which is awarded to be paid within 15 days from the date of receipt of copy of the order. If such an amount is deposited before the Commissioner in the manner provided under the relevant provisions, the order passed already shall stand confirmed. The trial shall begin but the second respondent will have no further evidence to offer than giving rebuttal evidence to what the first respondent states if there is an inter se conflict between the respondents themselves. However, if the amount is not deposited as directed, then the order passed shall be set aside and the award originally passed shall be retained. The claimant shall be at liberty to enforce the same in full.

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The counsel for the second respondent pleads special difficulty in stating that he had originally preferred an appeal against the award passed against him on contest but he withdrew it when the award was set aside through the impugned order. If the amount is deposited by the first respondent, as directed, and the case would go for a fresh trial, no further direction would be necessary. However, if the award becomes final in the sense that the amount is not deposited, the second respondent will still have a remedy by way of an appeal. If he had withdrawn the appeal, I grant liberty to him to file an appeal and cite the time taken by the Court in setting aside the award already passed and the time taken by the revision

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Civil Revision No.4694 of 2012 (O&M) - 4 -

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petitioners before this Court. If such a prayer is made through an independent application filed along with the appeal, the same will be considered for exclusion in the manner known to law. If the amount is deposited by the first respondent, the claimant shall be permitted to withdraw the same without any security.

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With these rights provided to the parties, the civil revision is disposed of

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(K.KANNAN) JUDGE 25.01.2013 sanjeev

Pushpa & Ors. v. Gulshan & Ors.

Case brief

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Pushpa & Ors. v. Gulshan & Ors.

Case brief

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